Defense Counsel to Military Commission Judge: The Government Can’t Have It Both Ways

In yesterday’s pre-trial motions proceedings in the 9/11 military commissions case against Khalid Sheik Mohammed and four co-defendants, defense attorneys argued that the U.S. government cannot block the defendants from telling their stories of torture while also pursuing the death penalty against them.

The specific issue before the judge was whether the protective order and related memorandum of understanding in the case—which arguably prohibit the attorneys and their clients from sharing information about the defendants’ own experiences of detention, interrogation, and torture by the U.S. government—violate the Convention Against Torture (CAT). In fact, almost all of the details of the CIA's "enhanced interrogation" program remain classified. The Senate intelligence committee recently adopted a 6,000-plus page study of the program, though the report remains secret pending a committee vote to make it public. The CIA, meanwhile, has been fighting to block the release of the committee's findings.

As some of the defense attorneys have noted, the desire to prevent evidence of wrongdoing from coming to light is one big reason that the government is trying defendants before military commissions at Gitmo, rather than in U.S. federal courts, which have a proven track record of successfully handling terrorism prosecutions. But article 13 of the Convention prohibits the U.S. from classifying information in order to cover up evidence of torture and related war crimes.

The parties spent the better part of the afternoon debating whether the court’s protective order prevents defendants’ from vindicating their individual rights under CAT by classifying their own experiences and impressions. The prosecution team responded that the U.S. already satisfies its obligations under CAT, that a person's own experiences can indeed be classified, and that defendants are allowed to raise evidence of their torture in closed sessions before the commission. What defendants are asking for, they claim, is to reveal classified information to unauthorized third parties. If the detainees want to file a complaint under CAT, they simply must seek approval to do so. Defense counsel for the accused immediately made such requests, with the exception of one attorney who noted that he had in fact already made such a request and that it had been denied.

But why does a violation of CAT even matter in these proceedings? The link, the attorneys explained, is that by prohibiting the defendants from vindicating their rights under CAT, the gag order also prohibits defense counsel from doing the job that is required of them in a death penalty case: investigating and presenting any and all mitigating evidence. If they can’t do this, they say, then the judge must either dismiss the charges or, at the very least, take the death penalty off the table.

The judge and defense counsel went back and forth on the question of whether there was any remedy before the commission given that even if the protective order were removed or modified, that still would not allow defendants nor defense counsel to disclose classified information to unauthorized parties. But that was part of the point: if they are already prohibited from disclosing classified information, then why have an order in place, as one attorney put it, that is “needless, senseless, and a waste of time?

Moreover, even if other government entities continue to violate CAT by classifying personal experiences of torture, it is nevertheless important that the commission, at the very least, ensure that its own orders comply with international law and the Convention Against Torture. Essentially, the commission should not be focused on the outcome of whether the commission amending the order to comply with CAT would allow defendants to speak out about their torture. (It wouldn’t because that the information remains classified and other governmental entities still would have to do their part by declassifying the information.) But rather, defense counsel argued, the commission must play its part to ensure that it is not complicit in violating CAT or covering up evidence of torture under the auspices that such information must be hidden in order to protect national security.

But the order should also be rescinded or amended, they argue, because of another problem: the order would continue to gag defendants and their attorneys even if the information was declassified due to how the order defines classified information. The absurd result, defense counsel explained, is that even if the President were to declassify information about the torture of one of the defendants tomorrow and all the country was talking about it publicly, the defendants and their counsel would still be prohibited from talking about defendants’ own experiences of torture, telling their story in court, and presenting an adequate defense. This the government cannot do because, they argue, such a move both violates CAT and the rights of defendants to a vigorous investigation of mitigating evidence.